| Or. | Mar 31, 1914
Lead Opinion
delivered the opinion of the court.
On the 5th day of August, 1909, Mrs. J. B. Elwert commenced this suit against the defendants. By her complaint she alleges that she has been and now is the actual owner of the following described real premises in Multnomah County, State of Oregon: Lot 5 in block 2 in East Portland, according to the map and plat thereof, recorded in Multnomah County— and also of the following described premises: Beginning at a point 100 feet west of the southeast corner of said block 2, and running thence west to the low-water mark of the Willamette River; thence running north along the low-water mark of the Willamette River 50 feet; thence east to a point 100 feet west and 50 feet north of the southeast comer of said block 2; thence south to the point of beginning; together with the exclusive right to wharf out to the harbor line of the Willamette River, abutting said premises.
The plaintiff further alleges that on the 21st day of August, 1906, the plaintiff’s daughter, Carrie M. Elwert, held the title to said premises as trustee for the plaintiff, and on said 21st day of August, 1906, H. P. Palmer induced said Carrie M. Elwert to sign some
The complaint alleges, also, that said H. P. Palmer and M. W. Parelius, at the time said paper was signed by said Carrie M. Elwert, knew that said Carrie M. Elwert held the title to said lot 5 in block 2 as trustee for this plaintiff, and knew, also, that she had no right to convey the same, without the consent .of the plaintiff, and induced her to sign said paper on the representation that the same was to be held by said IT. P. Palmer as trustee for this plaintiff, and not as an actual conveyance of lot 5 in block 2.
The complaint alleges, also, that at the time said paper was so signed by Carrie M. Elwert, said Palmer paid her the sum of $3,600, as a guarantee of good faith in holding said title, as trustee of this plaintiff, and that this plaintiff has at all times refused, and now refuses, to accept said sum as a consideration for said premises, or otherwise accept it, except to insure the good faith of said H. P. Palmer.
The complaint alleges, also, in substance, that on May 19,1909, said Parelius executed a pretended deed, attempting to convey to the defendant William Reid said lot 5 and said other real premises; but that said Parelius. never had any right, title, or interest in or to said premises, or any color of title to the premises last described, or any claim thereto, and that by said pretended deed Parelius has attempted, and is now attempting, to deprive the plaintiff of,her real estate,, and said deed casts a cloud upon the same.
The complaint alleges, also, that the defendants knew, at all times mentioned in the complaint, that
The complaint alleges, also, that Carrie M. Elwert is willing, and has been willing, at all times, to return to said Palmer, or to whomsoever the court will determine is entitled to it, said sum of $3,600. The complaint asks for a decree annulling the said deed made by Carrie M. Elwert to M. W. Parelius to said lot 5 in block 2 in East Portland, and quieting the plaintiff’s title to said other premises, described supra, and for general relief.
The defendants filed an answer, denying every allegation of the complaint, and alleging title to said premises in the defendant Reid, etc. A reply denied the affirmative matter of the answer. The court below, after hearing the evidence, rendered a decree in favor of the defendants.
The evidence shows that both parties claim title through a sheriff’s deed made by George C. Sears, sheriff of Multnomah County, to Carrie N. Elwert, in the case of J. B. Elwert v. Mary E. Knott and others, upon a sale made upon a writ of execution in said cause, issued out of the Circuit Court of Multnomah County, and dated September 16, 1895. This deed bears date of March 7, 1896, and it states that the grantee paid for the real premises conveyed to her, by said deed of conveyance, $3,000.
There appears to be a clerical error in the name of said grantee. Her name is Carrie M. Elwert, and it is written in said deed as Carrie N. Elwert; but there is no doubt that Carrie M. Elwert was the purchaser of said premises, and that she received said deed.
The sheriff’s deed described the real premises, thereby conveyed, as follows:
*322 “All the right, title, interest, and claim which the said defendants in said suit (Mary E. Knott and others) * * had on the 16th day of September, 1895, or at any time afterward, or now have, in or to all of these certain lots, pieces, or parcels of land, situated, lying, and being in said county of Multnomah, State of Oregon, and more particularly described as follows, to wit: Lot 5 in block 2 in the City of Portland, Multnomah County, Oregon, together with all and singular hereditaments and appurtenances thereto belonging, or in any wise appertaining. ’ ’
It is important to note that both parties claim through said deed. It conveyed lot 5 in block 2, in East Portland, “together with all and singular the hereditaments and appurtenances thereto belonging, or in any wise appertaining.”
On August 21, 1906, Carrie M. Elwert conveyed by a warranty deed to M. W. Parelius, and his heirs, the following described real property:
“All of lot numbered five (5) in block numbered two (2) in the City of East Portland (now within the corporate limits of the City of Portland), according to the duly recorded map of said City of East Portland, together with all and singular the tenements, hereditaments, and appurtenances thereunto belonging, or in any wise appertaining, and also all her estate, right, title, and interest, including dower and claim of dower. ’ ’
It will be observed that the last-named deed did not attempt to convey any land not described in said sheriff’s deed.
On May 19, 1909, M. W. Parelius and wife made a deed to the defendant William Eeid, purporting to convey to him said lot 5 in block 2 in East Portland, “together with the premises, beginning at high-water mark of the Willamette Eiver on the western prolongation of the north line of East Washington Street, and running thence westerly to the United States Har
It is not necessary to decide whether said Carrie M. Elwert purchased and held said lot in trust for her mother or not, as the preponderance of the evidence shows that neither H. P. Palmer, nor M. W. Parelius, nor William Reid had any knowledge or notice that she was holding said property in trust for her mother, or that her mother had, or claimed to have, any interest in said premises. They were purchasers of said premises in good faith, and for valuable considerations. The deed to Carrie M. Elwert was an absolute conveyance, and did not describe her as trustee, or mention any trust.
In said contract to convey said real premises to said H. P. Palmer or his assigns by Carrie M. Elwert, it was provided as follows:
“It is also understood and agreed that all lands, rights, and privileges owned or claimed by said Carrie M. Elwert between Water Street and the Willamette River is also to be conveyed by Carrie Elwert to said H. P. Palmer.”
Palmer, Parelius and Reid all testified that they had no knowledge or notice that the plaintiff, J. B. Elwert, either had or claimed to have any right or interest in the property in dispute, and the weight of the evidence on that point is with the defendants. Hence the deed of conveyance made by Carrie M. Elwert to M. "W. Parelius and the deed made by Parelius and wife to the defendant William Reid vest the title in fee to said lot 5 of said block 2 in East Portland in the defendant William Reid. We find, also, that the plaintiff was not, at the date of the commencement of this suit, or at any time since that date, the owner of the property described in the complaint, or of any part thereof, and that she was not and is not entitled to any of the relief prayed for in the complaint.
We find, also, that the defendant William Reid was, at the date of the commencement of this suit, the owner in fee simple of all of lot numbered 5 in block numbered 2 in the City of East Portland (now within the corporate limits of the City of Portland), according to the duly recorded maps of said City of East Portland, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any way appertaining. The property last above described is the property which Carrie M. Elwert obtained by the sheriff’s deed referred to supra, and which she conveyed to M. W. Parelius as stated supra. Parelius conveyed said premises to William Reid.
The decree of the court below holding that the plaintiff has no right, title or interest in or to said lot 5 in block 2 in East Portland, or any part thereof, or in or to any of the other real property described in the complaint, and that the defendant William Reid is the owner in fee of said lot 5 in said block 2 in East Portland, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any way appertaining, is affirmed; and this finding applies, also, to the plaintiff’s heirs at law. The plaintiff’s complaint is dismissed.
The plaintiff died on December 25, 1912, and C. P. Elwert and Carrie M. Elwert were substituted herein for the plaintiff as her sole heirs, and the appeal was prosecuted by them. Affirmed.
Rehearing
Rehearing denied May 19, 1914.
On Petition for Rehearing.
(141 Pae. 540.)
Department 1.
delivered the opinion of the court.
The petition for rehearing says that J. B. Elwert, now deceased, who brought this suit, did not obtain title to the real premises in dispute through the sheriff’s deed referred to in the opinion of the court,
This suit was brought by J. B. Elwert, the mother of Carrie M. Elwert, and, after it was commenced, she died, and Carrie M. Elwert and C. P. Elwert were substituted in her stead as plaintiffs.
This suit was brought to obtain a decree of cancellation of a deed of conveyance dated August 21, 1906, made by Carrie M. Elwert to M. W. Parelius, conveying to him, for $3,600, lot 5 in block 2 of the City of East Portland, with its appurtenances, and quieting the alleged title of J. B. Elwert to other lands described in the complaint, and in the petition for rehearing.
J. B. Elwert never had a deed conveying to her any of the land described in the complaint, nor did she have any written evidence of title thereto. Her daughter, Carrie M. Elwert, purchased said lot 5 in block 2 in East Portland at sheriff’s sale and received a sheriff’s deed conveying said lot to her, and she, with the knowledge of J. B. Elwert, entered into a written contract to sell said lot to H. P. Palmer or his assigns fon $3,600. Palmer paid her said sum for said lot, and in doing so he was acting as agent of M. W. Parelius. Before Carrie M. Elwert conveyed said lot to M. W. Parelius as assignee of Palmer, she, by the agreement with Palmer, permitted Palmer to bring a suit in equity, in her name, as plaintiff, against P. H. Marley, H. E. Noble, and J. Olsen, to quiet the title of said Carrie M. Elwert to the premises described in the petition for a rehearing, etc. The complaint in said suit
The Circuit Court of Multnomah County, in said suit, rendered a decree that Carrie M. Elwert was the owner of said premises, in fee simple, and that the defendants therein had no title to any portion of said premises, and that said tax deeds were void, etc.
The petition for rehearing contends that the decree above referred to vested the title to said premises in Carrie M. Elwert, and that she held said title as trustee of her mother, J. B. Elwert.
The complaint in said suit alleged, and the court by its decree found, that Carrie M. Elwert was the owner in fee of said premises, and that neither of the defendants therein had any interest in said premises. In other words, Carrie M. Elwert had, according to said decree, when she filed her complaint, the title to said premises, and the defendants had no interest therein. How, then, did or could Carrie M. Elwert obtain title to said premises by said decree? She did not obtain it from the defendants, because the decree found that they had no interest in the premises.
As between Carrie M. Elwert and her privies and Marley, Noble and Olsen and their privies, said decree is conclusive evidence that Carrie M. Elwert was the owner of said premises in fee simple at the date of
In the complaint in this suit, the plaintiff J. B. Elwert alleges that on the 21st day of August, 1906, the plaintiff’s daughter, Carrie M. Elwert, held the title to said premises (including the premises described in the petition for a rehearing) as trustee for the plaintiff. The decree in Elwert v. Marley was not rendered until September 24, 1906. Hence, according to the complaint, Carrie M. Elwert held the title to said premises in trust for J. B. Elwert before said decree was rendered.
We do not think that Carrie M. Elwert obtained any title to the property in dispute by virtue of the decree in Elwert v. Marley, but that said decree would be conclusive evidence of title in her in a suit between her and the defendants in said suit and their privies. It is not evidence of title in her, as against the defendant William Reid.
If it were true that she derived title to the premises in dispute by said decree, that fact could not benefit the plaintiffs in this case, because there is not a scintilla of evidence that said title vested in J. B. Elwert.
We believe that the conclusion reached in the original opinion is correct, and therefore the petition for a rehearing is denied.
Affirmed. Rehearing Denied.